European Arrest Warrant

by

Stefano Manacorda, Costantino Grasso

• LAST REVIEWED: 18 February 2021
• LAST MODIFIED: 25 June 2013
• DOI: 10.1093/obo/9780199796953-0089

Introduction

The European Union has increased its influence over criminal law since the Treaty of Maastricht (1993) and, in particular, the Treaty of Amsterdam (1999), came into force. The treaties established a competency in the area of freedom, security, and justice. and Mutual recognition of judicial decisions represents the principal model of integration in criminal law employed by the European Union, completed by approximation of substantive and procedural rule (Art. 30 and 31 of the Treaty on European Union; Art. 82 to 86 of the Treaty on the Functioning of the European Union). The European Arrest Warrant (EAW) is the main instrument developed in the field of mutual recognition and in the 21st century it represents one of the most effective tools in judicial cooperation, replacing extradition among member states. No historical precedent exists for such a supranational procedural measure of criminal law. Its most innovative aspect is that it consists principally in being a judicial decision, thus taking the decision for surrendering out of the hands of politicians. Adoption of the EAW became a priority after the terrorist attack on the World Trade Center of 11 September 2001. The measure was implemented by means of a “framework decision,” the principal legal instrument of the third pillar of the European Union until the Treaty of Lisbon came into force. Framework decisions are those that are binding as to the result to be achieved but leave to national authorities the choice of form and methods. They do not need to be ratified by national parliaments, though they have to be transposed into national laws within a particular time frame. The Framework Decision on the European Arrest Warrant and Surrender Procedures between Member States of the European Union (2002/584/JHA) was adopted by the Council of the European Union on 13 June 2002, published in the Official Journal of the European Communities on 18 July 2002 and came into force on 7 August 2002. It is structured in three parts. The first part, devoted to general principles, provides a definition of the European Arrest Warrant and clarifies its scope, enumerating the grounds for mandatory and optional nonexecution; the second part focuses upon the surrender procedure, indicating the formal requirements of the measure and listing the rights of a requested person; the third part deals with the effects of the surrender, providing the rules related to the principle of specialty.

General Overviews

General studies on European criminal law integration and the system of mutual recognition of judicial decisions represent the proper foundation to correctly analyze the critical questions arising from the adoption of the Framework Decision on the European Arrest Warrant. Manacorda 2009 offers a basic explanation of the EAW. A comprehensive study of judicial cooperation is Mitsilegas 2009, in which the author investigates various aspects of European criminal law focusing on the adopted measures of mutual recognition and the constitutional issues relating to them. Peers 2011 covers this matter extensively, analyzing the most relevant issues relating to European Union justice and home affairs law. An in-depth analysis of the process of harmonization of criminal law in Europe is offered in Weyembergh 2009. Giudicelli-Delage and Manacorda 2005 focuses on the relationship between mutual recognition and approximation of substantive criminal law. Subsequent developments in the field of judicial cooperation in criminal matters are presented in Manacorda 2007, in which the progressive consolidation of the area of freedom, security, and justice and different forms of European cooperation in criminal law are investigated. With regard to the EAW specifically, Blekxtoon and van Ballegooij 2004 represents a fundamental guide, which, structured as a commentary, provides a detailed analysis of the various parts of the Framework Decision. Keijzer and van Sliedregt 2009 is characterized by a useful practical approach and examines the issues that have arisen during several years of application of this measure of judicial cooperation.

• Blekxtoon, Rob, and Wouter van Ballegooij, eds. Handbook on the European Arrest Warrant. The Hague: TMC Asser, 2004.

  The volume represents a fundamental guide for analysis of the European Arrest Warrant, highlighting important points regarding the European measure of judicial cooperation. The work deals with the origins and implications of the EAW; it is organized as a commentary on each paragraph of the Framework Decision, examining both practical and theoretical issues.

• Giudicelli-Delage, Geneviève, and Stefano Manacorda, eds. L’intégration pénale indirecte: Interactions entre droit pénal et coopération judiciaire au sein de l’Union Européenne. Paris: Société de Législation comparée, 2005.

  The volume, written partly in English and partly in French, presents an extensive analysis and offers an original guide to the interpretation based on the assumption that indirect European integration will eventually lead to a substantive harmonization. It is divided into three parts: the first focuses on the EAW, the second investigates the proposal for a European public minister, and the third analyzes European criminal law integration.

• Keijzer, Nico, and Elies van Sliedregt, eds. The European Arrest Warrant in Practice. The Hague: TMC Asser, 2009.

  DOI: 10.1007/978-90-6704-563-6

  The book is characterized by a useful practical approach to the European Arrest Warrant. The authors comment upon the different phases of the surrender procedure in a chronological order. Moreover, they deal with two other regional extradition systems: the new Nordic Arrest Warrant and extradition as practiced in the United States.

• Manacorda, Stefano. “La consolidation de l’Espace de liberté, de sécurité et de justice: Vers une ‘mise à l’écart’ du rapprochement pénal?” Revue de science criminelle et de droit pénal comparé 4 (2007): 899–909.

  The author deals with the progressive consolidation of the area of freedom, security, and justice in investigating different forms of European cooperation in criminal law: establishment of the specialized agencies (e.g., Europol, Eurojust), harmonization and approximation of national rules of criminal law, mutual recognition. Moreover, the article highlights the significance of the European Court of Justice’s role in this field.

• Manacorda, Stefano. “European Arrest Warrant.” In The Oxford Companion to International Criminal Justice. Edited by Antonio Cassese, 313. New York: Oxford University Press, 2009.

  This encyclopedia entry on the European Arrest Warrant, inserted into the commentary covering every aspect of international criminal justice, offers a useful overview of this legal instrument of judicial cooperation.

• Mitsilegas, Valsamis. EU Criminal Law. Oxford: Hart, 2009.

  The book includes comprehensive coverage of European Union criminal law and provides an important analysis of the subject, in revealing how measures of mutual recognition, such as the EAW, may have deep and widespread repercussions on national systems of criminal justice. Moreover, the author investigates how the EAW Framework Decision has raised some extremely relevant constitutional concerns.

• Peers, Steve. EU Justice and Home Affairs Law. New York: Oxford University Press, 2011.

  The manual offers an extensive overview of the key themes of European Union justice and home affairs law and analytically examines different issues relating to each relevant area of interest. In the chapter devoted to mutual recognition and criminal procedure, the author deals specifically with extradition and the EAW.

• Weyembergh, Anne. L’harmonisation des législations: Condition de l’espace pénal européen et révélateur de ses tensions. Brussels: Éditions de l’Université de Bruxelles, 2009.

  In this text, the author analyzes the very concept of espace pénal européen and its origins. The author gives a critical guide to the interpretation of the method used in the process of harmonization of criminal law in Europe and offers a comparative analysis between initiatives planned to harmonize criminal law within the European Union and similar efforts that have taken place in other parts of the world.